How NOT to Quash An Out Of State Subpoena

You've gone through the laborious process of getting a subpoena issued in another state for production of documents. You've had a commission issued by the Superior Court and you've hired out-of-state counsel to get the subpoena.

But now, opposing counsel shows up in North Carolina Superior Court and moves to quash the subpoena issued in another state by way of a North Carolina commission.

What do you do? Not what the Plaintiff did in Capital Resources, LLC v. Chelda, Inc., decided this week by the NC Court of Appeals. Capital persuaded the NC judge to enter a Protective Order quashing several out-of-state subpoenas. In addition, the Protective Order directed that it should be served on each recipient of the subpoenas and on each clerk of court issuing the subpoenas.

The Court of Appeals, through Judge Stephens, said that "a superior court judge in this State does not have any authority over the courts of other states, and thus could not quash subpoenas issued by such courts." Op. 13.

The orders quashing the subpoenas were "void and of no effect." Op. 13. They were so void that Judge Stephens said that the out-of-state courts "could simply have ignored" them. Id.

By like measure, the party pursuing the subpoeanas has to seek their enforcement in the foreign courts. The Court held that:

Had [the party issuing the subpoeanas] wished to proceed with its attempt to obtain documents under the . . . subpoenas, [it] could have requested those out-of-state courts to notify the subpoena recipients that Judge Levinson's order was to no effect. To the extent the entities in question failed to comply with the subpoenas, [Its] remedy was to initiate contempt or other proceedings in those states' courts as provided for by their rules of civil procedure. Had [it] thus obtained any documents it felt relevant to this action, it could have attempted to introduce such in this case.

Op. 14.

It's pretty clear that the federal practice is the same. FRCP 45(c)(3) gives the power to quash a subpoena to the "issuing court." The issuing court is also given the power to "hold in contempt" a person who fails "without adequate excuse to obey the subpoena," FRCP 45(e).

On a related issue, Judge Diaz of the Business Court held four years ago in Hilb Rogal & Hobbs Co. v. Sellars (unpublished) that a North Carolina court has no power to order an out-of-state resident to comply with a subpoena.